Koro v The State [2002] FJHC 161; HAA0048J.2002L (2 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0048 OF 2002L

Between:

SIKELI KORO
Appellant

And:

THE STATE
Respondent

Hearing: 27^th September 2002

Judgment: 2^nd October 2002

Counsel: Appellant in Person
Mr G. Allen for State

JUDGMENT

On 27^th February 2002, the Appellant was charged with two counts of Incest and one count of Assault Occasioning Actual Bodily Harm. The charges read as follows:

FIRST COUNT

Statement of Offence

INCEST: Contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

SIKELI KORO between 1990 and 2000 at Rakiraki in the Western Division had carnal knowledge of [the complainant] who was to his knowledge his daughter.

SECOND COUNT

Statement of Offence

INCEST: Contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

SIKELI KORO on the 19^th day of October, 2000 at Rakiraki in the Western Division had carnal knowledge of [the complainant] who was to his knowledge his daughter.

THIRD COUNT

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 245 of the Penal Code, Cap. 17.

Particulars of Offence

SIKELI KORO on the 19^th day of October, 2000 at Rakiraki in the Western Division assaulted [the complainant] thereby occasioning her actual bodily harm.

The Appellant, who is 52 years old, appeared in the Ba Magistrate’s Court on the 27^th of February and pleaded guilty on all three counts. The facts were outlined. The prosecutor said that the Appellant is married to Adi Quini Marama with whom he had 6 children. The complainant was their eldest child, and was born on 19^th December 1974. In 1990, the Appellant started to have a sexual relationship with the complainant. She was then 16 years old. This relationship continued for the next 10 years. The complainant gave birth to two children, now aged 6 years and 17 months respectively. On 19^th October 2000, the Appellant had sexual intercourse with the complainant, and also assaulted her causing her injuries. She reported the matter to the police on 22^nd October 2000, and on 14^th January 2001, the Appellant made admissions to the police about his incestuous relationship with his daughter. The Appellant was arrested on the 26^th of February and charged with the offences.

The Appellant admitted the facts, but said he was not sure if the children of his daughter were his children. The learned Magistrate said that the offences were proved without evidence of parentage of the children and convicted the Appellant as charged.

The Appellant had no previous convictions. In mitigation he said he had asked his wife and his daughter for forgiveness and said that his daughter was now married. He said he was looking after her two children, and that he was an unemployed villager who planted dalo and cassava to meet the education expenses for the children. He asked for forgiveness. His wife confirmed that she had forgiven him.

The learned Magistrate said that the 10 year period covered numerous occasions of incest and should not have been put into one count. However he imposed the harshest sentence he could within his jurisdiction and sentenced the Appellant to 5 years imprisonment each on Counts 1 and 2, to be served consecutively, and 2 months imprisonment on Count 3 to be served concurrently with Count 1. The total length of the sentence to be served is 10 years imprisonment.

The Appellant now appeals against the sentence saying that the complainant had been a “willing partner”, that the charge was defective, that his plea was not unequivocal, and that the sentence was harsh and excessive. He said that no discount had been given for his guilty plea, and previous good record.

I deal with each of these grounds in turn.

Consent of Complainant

Although, an appeal against conviction is not normally permitted after a guilty plea, it may be entertained if the Appellant claims the plea was a nullity, or the offence was not known in law, or where the proceedings were otherwise invalid.

In this appeal, the Appellant submits that the offence was not disclosed by the facts, because the complainant consented to his incestuous acts. He is mistaken. Section 178(1) and (2) of the Penal Code provide as follows:

“(1) Any male person who has carnal knowledge of a female person, who is to his knowledge his granddaughter, daughter, sister or mother, is guilty of a felony, and is liable to imprisonment for seven years:

Provided that if it is alleged in the information or charge and proved that the female person is under the age of thirteen years, the offender shall be liable to imprisonment for life.

(2) It is immaterial that the carnal knowledge was had with the consent of the female person.” (my emphasis)

The consent of the complainant is irrelevant to the charge. This ground of appeal fails.

The charge on Count 1

The Appellant submits that the charges were defective. The learned Magistrate suggested as much in his sentencing remarks. At the hearing of this appeal, the Appellant did not develop this argument. However I requested State counsel to address me on the question of whether Count 1 was duplicitous, because it purported to charge more than one offence in a ten year period. Counsel made comprehensive and well-researched submissions for which I am grateful.

Section 120(2) of the Criminal Procedure Code provides:

“Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.”

Where the prosecution is confronted with evidence of a long history of offending, it has, traditionally, been faced with several options. One has been to “pick the best” and to proceed with two or three counts instead of laying multiple counts. Another has been the procedure under section 216 of the Criminal Procedure Code. Under the provisions of that section, a court may, on convicting a person, with the consent of the defendant and the prosecutor, take other untried offences “of a like character” into account, in sentencing. The defendant must have consented to this procedure in writing in accordance with the prescribed form scheduled to the Code. Another option is to lay multiple counts over a long period of time, specifying details of particular incidents of offending. These options have been unhelpful where the offending has taken place over a long period of time, and where separate acts of offending are indistinguishable from each other. This problem is very common in cases of sexual offences, where witnesses are unable to say with any certainty, when separate offences were committed, and on how many occasions.

In R v Shore (1989) 89 Cr. App. R, the defendant was charged with four counts of indecent assault against four girls, over several years. The evidence was that the defendant, a school teacher had committed indecent acts on girls during P.E. lessons, on school trips and at swimming classes. The prosecution did not tie the evidence down to particular counts, leading evidence instead of multiple offending during the time period alleged. The Court of Appeal held, on appeal against convictions, that this was unobjectionable because the prosecution witnesses could not identify particular incidents with any certainty, and because the defendant was not prejudiced.

However in R -v- Rackman (1997) Crim. L.R. 592, convictions for sexual assaults on children over a long period of time were quashed on the ground that the trial judge should have allowed an application for better identification of specific incidents to which the counts related. The Court of Appeal held that an indictment should be drawn with as much particularity as possible because failure to do so creates possible ambiguity in both conviction and sentence. Archbold (1999 ed para 1.132) states as follows:

“Where a child speaks of a number of incidents with no distinguishing features, a convenient course, in order to establish the systematic conduct of the accused is to have a number of counts, each, apart from the first, alleging “on an occasion other than that alleged in [the previous counts]”. The overriding principle is that the number of counts in the indictment should fairly reflect the alleged criminality ... otherwise sentencing problems may arise. It should not be too difficult in most cases to settle an indictment which steers a safe course between prejudicial uncertainty and overloading.”

The New Zealand Court of Appeal in R -v- Accused (1993) 1 NZLR 385 approved the “representative charge” procedure. In that case, the Crown charged the defendant with 11 counts of sexual offences against three women. The offences were alleged to have been committed when the women were children, and the indictment did not specify particular dates. The trial judge held that the charges lacked sufficient particularity, directed not guilty verdicts and reserved the case for the Court of Appeal. It was held by the Court of Appeal, that there was an established practice of using specimen counts in New Zealand. That practice was followed where witnesses could not say more than that the conduct alleged occurred a number of times over a long period of time. However, each count must be as specific as is reasonably possible in the circumstances. Referring to a list of cases of child sexual abuse, referred to the New Zealand Court of Appeal all of which had adopted the specimen charge practice, the Court said (per Cooke P) at p.390:

“The evil of this kind of offending appears to be virtually world wide. While the Courts cannot solve the social problem, a response to it in the Courts invoking a technical legal doctrine of some obscurity seems unsatisfying.”

The High Court of Australia in S -v- R [1989] HCA 66; (1989) 168 CLR 266 took a different view. In that case, a father was charged with 3 counts of unlawful carnal knowledge of his daughter. Each count specified one act within a 12 month period. The complainant said that her father had committed sexual acts with her from the age of 9 or 10, and had sexual intercourse with her continuously, from the age of 14 to 17. The High Court held (per Brennan, Dawson, Toohey, Gaudron and McHugh JJ) that, applying what the Court called the doctrine of latent ambiguity, the Crown could not lead evidence of a number of offences, any one of which constituted the offence charged, and invite the jury to convict on them.

The following passage was cited, with approval by Brennan and Toohey JJ, from a decision of Dixon J in Johnson -v- Miller [1937] HCA 77; (1937) 59 CLR 467, 489:

“..... the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, mater or thing alleged as the foundation of the charge.”

Toohey J then explained:

“Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.”

The convictions were quashed by the majority, Brennan J dissenting on the basis that although the charge was defective, he thought there had been no substantial miscarriage of justice.

Finally the Canadian Courts (as discussed by the New Zealand Court of Appeal in R -v- Accused supra) have adopted the principle that where the offending took place over a certain period, and cannot be individually particularised, all the offending is part of one transaction, and can be alleged in one count (R -v- Hulan (1970) 1 CCC 36 R -v- German (1989) 51 CCC (3d) 175).

Having considered these decisions from courts around the Commonwealth, it appears that there is a need to balance two possibly competing principles. One is that the prosecution should not be prevented from prosecuting repeat offenders simply because witnesses (understandably) cannot particularise specific incidents and cannot say more than that the offending continued over a lengthy period of time. The other principle is that an accused person must not be tried on the basis of charges which are ambiguous and render the preparation of a defence difficult or even impossible because of lack of particularity. The balancing of these principles must depend on the evidence led in a particular case, and the wording of particular charges. However, as a matter of practice, it seems good sense to adopt the New Zealand procedure of specimen charges where the incidents of offending are indistinguishable from each other, and where it is open to the court to convict as long as it is satisfied beyond reasonable doubt that the accused, on at least one occasion, in the period alleged, committed the act alleged. As to whether a count in a particular case contains “such particulars as may be necessary for giving reasonable information as to the nature of the offence alleged” as is required by section 119 of the Criminal Procedure Code, that is a question to be considered and ruled upon, on the basis of the circumstances of each case. Further, it is open to the court to require the prosecution in any case, to state which incident in particular, is referred to in the charge. A good practice might be to refer to the count as a specimen or representative count, as is the practice in New Zealand.

Returning therefore to the charge on Count 1 in this case, it is evident that the prosecution was laying a “specimen count.” The period alleged stretched over 10 years. The facts outlined referred to a long relationship over a 10 year period during which two children were born of the complainant. Although the prosecution might have been wiser to lay several counts over a 2/3 year period each, I accept State counsel’s submissions that on the facts, it was probably impossible to further particularise the allegations. If the matter had proceeded to trial however, it is highly likely that the charge would have been amended by the prosecution to contain more specific information about dates. There may have been several counts stretching over the 10 year period. However, this was a case of a guilty plea. The Appellant admitted the multiple offending. As to possible prejudice to the Appellant therefore, the fact that he pleaded guilty to the two counts of incest, and agreed to the facts which disclosed multiple offending over the 10 year period, shows that there was no ambiguity. There is no suggestion on the record that the Appellant disputed the sexual acts over the 10 year period. On the facts of this case, and on the basis of the fact that there was a clear unequivocal guilty plea, I consider that the Appellant was not prejudiced by lack of particularity and that he was given reasonable information about the nature of the allegations. Finally, in his interview with the police, the Appellant himself was unable to recall details of specific acts of sexual intercourse over the 10 year period, with his daughter. This ground of appeal is unsuccessful.

The plea

The charges were read, and explained to the Appellant. However he was not told of his right to counsel. Although there was an undoubted breach of section 28(1)(d) of the Constitution, the record suggests no resulting prejudice. The learned Magistrate ensured that the Appellant was pleading guilty of his own free will and that the police did not force him to plead guilty. Further the facts were clearly outlined, and the caution interview of the Appellant tendered. That interview discloses a clear and unequivocal confession of repeated acts of incest with his daughter. He said that the acts of sexual intercourse with her started in 1990 and that he could not remember how many times they recurred.

In the circumstances I consider that the plea was unequivocal and that the Appellant was not prejudiced by the failure of the learned Magistrate to advise him of his right to counsel.

Sentence

The learned Magistrate clearly disapproved of the “specimen” Count 1, and sentenced on the basis of one incident of offending. He said in his sentencing remarks:

“If this case had been properly investigated then the accused would have been condemned to jail for the rest of his life as Count 1 covers a period of 10 years when in my view it should have had many different counts.”

The sentence was 5 years on Count 1 and 5 years on Count 2. It follows that he treated the offending on each count as single acts calling for the same sentence. In the case of “specimen counts”, the question of sentencing can be a difficult one. Does the sentencer sentence on the basis of multiple offending, or on the basis of one incident of offending? In Clark -v- R (1996) 2 Cr. App. R(s), the English Court of Appeal said that in such a case, the sentencer must not sentence the offender on the basis that he was guilty of further offences of a similar nature unless the offender has admitted those other offences. In that case, the defendant had been charged on one count of indecent assault on a male person. The period alleged was a two year period. The count was a specimen count because the evidence showed multiple offending during that period. The trial judge sentenced on the basis that there had been a series of assaults over the two year period. On appeal the Court of Appeal said at page 356:

“... the appellant was not convicted of the offences making up the series, nor did he admit them or request the court to take them into consideration. Therefore, .. we are driven to the conclusion that this appellant, having been convicted on a single count particularising a single act, and not having admitted any offence beyond that, can only be sentenced on the basis of that single act.”

Brennan J in S -v- R (supra) at pp.271-272 thought it unrealistic to insist on convicting and sentencing for one act only, when multiple acts during the period were indistinguishable from each other:

“It is in my respectful view, fanciful to suggest that the verdict could not be returned because some jurors were satisfied that one act of intercourse occurred, others that another act occurred and others again that a third act occurred within a relevant period. The real choice for the jury was to be satisfied that the series of incestuous acts occurred. The jury could not have found that a particular act in the series occurred and another did not. There is nothing by which the jurors might have distinguished between one act and another.”

This makes good sense. If the witness can only give evidence of multiple acts of incest over a long period of time, why should the court accept that some acts occurred and others did not? And, for the purpose of sentencing, doesn’t it follow that if the court has accepted the multiple offending, then the sentence should also reflect such offending?

In any event, in this case the Appellant admitted multiple acts of incest. In principle therefore on the basis of the decision in Clark (supra) the learned Magistrate could have sentenced him on the basis of such multiple offending. However, he did not. Instead he sentenced on the basis that Count 1 referred to one act of incest, and Count 2 to another. His sentence on each count was identical.

In Fiji, other similar cases have resulted in total sentences of 5 years imprisonment. In Aseri Koroi -v- the State HAA0055.2002, Singh J referred to the guideline sentencing case of incest in Attorney-General’s Reference No. 1 of 1989 (1990) Cr. App. R. 141 and said that cases of incest should be divided into three broad categories. The first is incest with a girl over the age of 16, in respect of which sentences should range between 3 years imprisonment (where there was a degree of harm caused to the girl) and a nominal penalty where the girl was a willing partner and the degree of corruption was low. The second category is incest with girls between 13 to 16 years of age, where the same principles apply and where the range of sentence is between 5 years and 3 years imprisonment. In cases of guilty pleas, 2 to 4 years imprisonment would be appropriate. The third category of cases, is incest with a girl under the age of 13. This category covers cases of the corruption of young children whose will might be easily overborne by a parent. A term of 6 years imprisonment might be appropriate in such cases. In Aseri Koroi (supra) his Lordship reduced a 9 year term to a 5 year concurrent term for 5 counts of incest.

The rape of one’s own daughter or granddaughter naturally attracts a much heavier sentence, the tariff for rape commencing at 10 years imprisonment for the rape of children. However the Appellant was not charged with rape. He was charged with incest. The tariff for incest with a 16 year old girl ranges from 2 years imprisonment to 4 years imprisonment. The learned Magistrate did not indicate his starting point, nor did he refer to the tariff for incest cases. However, I would choose 3 years as an appropriate starting point because of the length of the relationship, and the age of the complainant. There was no evidence of psychological harm, but the facts disclosed that the Appellant was angry because the complainant began a relationship with another man. The complainant’s pregnancy was another aggravating factor, although the Appellant is not sure that he is the father of the children.

Mitigating factors were the guilty plea, the previous good character and the willingness to support the complainant’s (and possibly the Appellant’s) children. In the circumstances, a term of 5 years imprisonment is not inappropriate for one count although it is higher than the tariff. However, ordering consecutive terms offend the totality principle. If the Appellant is sentenced to 10 years in total for 2 counts of incest, this would be contrary to the trend of sentencing in incest cases generally. State counsel concedes the appeal against sentence must succeed, saying that while a 5 year term might reflect the duration of the offending on Count 1, a similar term on Count 2 is difficult to justify. I agree.

In the circumstances I allow the appeal against sentence. The Appellant’s sentence is varied as follows:

Count 1: -5 years imprisonment;

Count 2: -3 years imprisonment;

Count 3: -2 months imprisonment.

All sentences are to be served concurrently with each other, and run from the date of the Appellant’s conviction on 27^th February 2002.

Result

The appeal against conviction is dismissed. The appeal against sentence is allowed. The Appellant’s total sentence is reduced to 5 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
2^nd October 2002